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Howell v Lees-Millais – Costs management

The Association of Costs Lawyers’ new special adviser Dominic Regan, writing in the New Law Journal, discussed the case ofHowell v Lees-Millais [2011] EWCA Civ 786.

This case concerned a Beddoes application (see Re Beddoe, Downes v Cottam (1893) 1 Ch 547). A trustee is enabled to seek guidance from the court on whether an action should be brought or defended at the expense of the estate. Here, unbelievably, the application took over 12 days of court time with 3,000 pages of evidence and costs exceeding £1,000,000.

Dominic commented:

“Having watched the costs pilot scheme in Birmingham under the firm but fair expert hand of HH J Simon Brown QC, I am now an utter convert to the idea of having a thorough directions hearing wherever possible. A competent judge will force the parties to take a realistic, proportionate approach. … Bring on Sir Rupert Jackson and quickly, please.”

Although it is difficult to object to the principle of firm case management by a judge, the problem is that it relies on suitably skilled and trained members of the judiciary. The original judge in this matter had strong case management powers but had allowed the original hearing of the application to run for eight days (an application which other judges have said should normally require “comparatively small expense” and was an “inexpensive method” of getting a decision). He then allowed a time estimate of a further ten days for argument as to who should pay the costs of the application.

Further, Dominic’s article also referred to some of the critical comments made about another judge’s conduct who had been involved in the same case at an earlier point. The management of a case is only as good as the judge with conduct.

The attitude of many judges to anything costs law related does not fill one with confidence that costs management will be a 100% success.

“Assuming the Judiciary get the required training…” – a local Judge recently told me that the only time he gets to here about case law and guidance was when I’m before him and that he was always the last to know, so I’m with Simon on this one. The same Judge was shocked when he found out FILEX’s could become partners….